Supreme Court: The instant case dates back to 1976 when the 3-judges Bench comprising S. Murtaza Fazal Ali*, P.N. Bhagwati, and V.R. Krishnaiyer, JJ., recognised the trespasser's right to protest against the true owner.
There is an equitable maxim that says “he, who comes into equity must come with clean hands”; meaning the Court should not aid a party claiming relief where the party's own actions were of wrongful nature. However, the aforesaid doctrine has some exceptions attached to it and one such exception was recognised by the Supreme Court in this case; where the Court had held that a true owner has no right to forcefully dispossess the trespasser and the only remedy available to him is taking recourse to law. The Court held,
Where the true owner attempts to dispossess a trespasser by force, the trespasser has every right to use his right to protect his person and property.
Factual Matrix
The genesis of the case was that the appellants got themselves involved in an armed conflict with the prosecution party resulting in death of the deceased, injuries to some of the prosecution witnesses, and injuries to three of the accused themselves.
The accused-appellants' case was that shortly after the consolidation of holdings had taken place in the village as a result of which the Revenue authorities provided a Chak Road adjacent to the field of the complainant to enable the residents of the village to pass through the road with their cattle. However, the complaints took undue advantage of the proximity of the road and encroached upon the same, and amalgamated it with his cultivable field. The appellants contended that all that they wanted was to assert their lawful right over the Chak Road and it was the prosecution party that was the aggressor and started assaulting the accused as a result of which three persons on the side of the accused received serious injuries. The accused, therefore, had every right to throw out the complainants who were trespassers by force. The accused were, therefore, acting in the exercise of their right of private defence of person and property and were justified in causing the death of the deceased, particularly in view of the serious injuries received by three of the party of the accused.
The Trial Court and the High Court come to a concurrent finding that the accused persons were the aggressors and had opened the assault on the deceased. However, both the Courts also concurrently found recorded that the place of occurrence was a part of the Chak Road and the complainant had encroached on the same and had brought the land under cultivation over which he had grown paddy crops.
Analysis and Findings
In view of the clear finding of the High Court and the Sessions Judge that the land in dispute was in the settled possession of the complainant who rightly or wrongly encroached upon the road and converted it into his cultivable land, the Court held that the accused had no right to throw the complainant by force. The Court stated,
“It is well settled that a true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner.”
The Court ruled that the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law.
To determine when the possession of a trespasser becomes complete and accomplished, the Court followed Puran Singh v. State of Punjab, (1975) 4 SCC 518, where the Court had held that one of the tests is to find out who had grown the crop on the land in dispute.
Thus, the Court opined that the nature of possession in such cases which may entitle a trespasser to exercise the right of private defence of property and person should contain the following attributes:
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that the trespasser must be in actual physical possession of property over a sufficiently long period;
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that the possession must be to the knowledge either express or implied of the owner or without any attempt at concealment and which contains an element of animus possidendi;
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the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner; and
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in the case of culturable land, whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which case the trespasser will have a right of private defence and the true owner will have no right of private defence.
Considering the finding of the High Court that the complainant even after encroachment had established his possession over the land in dispute for two to three weeks before the occurrence and had grown paddy crop, the Court found that the complainant must be treated to be in actual physical possession of the land so as to have a right of private defence to defend his possession even against the true owner.
Conclusion
Resultantly, the Court held that it was the appellants who were undoubtedly the aggressors and had opened the assault, therefore, they could not claim any right of private defence either of person or property. The Court stated,
“It is true that the appellants were trying to exercise their lawful right over a portion of the land which had been left apart as a public road for the use of villagers by the Revenue authorities, but as a complaint had already been filed before the Panchayat the appellant should have allowed the law to take its course instead of taking the law in their own hands by making an armed trespass into the property.”
However, noticing that there was no common intention on the part of all the accused to cause the death of the deceased or to cause grievous injuries which was an individual act of the appellant Ram Sajiwan, the Court held that the other appellants could not be convicted under Sections 325/34 of the Penal Code, 1860 (IPC). Considering that the appellants had no right to private defence of person or property, the Court held that Ram Sajiwan was rightly convicted under Section 302 of IPC because the injury caused by him was sufficient to cause the death of the deceased.
In spite of above, taking a sympathetic view, the Court noted that the accused Ram Sajiwan who was really trying to assert his lawful right against the complainant who was a trespasser, was fighting for a just and righteous cause though not in a strictly lawful manner. Therefore, the Court suggested that these considerations may weigh with the Government for considering the question of remitting a portion of the sentence imposed on the appellant Ram Sajiwan.
Hence, the Court affirmed the conviction of Ram Sajiwan and set aside the conviction of the other appellants under Sections 326/34 IPC. However, holding that the other appellants undoubtedly had a common intention to cause simple hurt, the Court confirmed their convictions and sentences under Sections 324/34, 323/34 and 447 IPC.
[Ram Rattan v. State of U.P., (1977) 1 SCC 188, decided on 26-11-1976]
*Judgment by: S. Murtaza Fazal Ali
Advocates who appeared in this case :
For Appellants: Advocate S.K. Mehta, for the appellants.
For Respondents: Senior Advocate D.P. Uniyal and Advocate O.P. Rana
For Intervener: Advocate R.L. Kohli
*Kamini Sharma, Editorial Assistant has put this report together.
